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Spriggs v. Commonwealth.

The term

slaughter to be dealt with as at common iaw. "manslaughter" has therefore become a generic term, covering two specific offenses, or degrees of homicide, punishable, the one under the statute, by confinement in the penitentiary, and the other, under the common law, by fine and impris onment in jail. The common-law learning of the text-writers upon the offense of manslaughter can have no place in the definition of the two degrees of homicide which have been carved out of manslaughter by the effect of our statute, however apt such learning may have been under the ancient practice, when the punishment of both grades was a matter resting in the discretion of the judge. We are well aware that there are opinions by this court in which this distinction seems to have been wholly overlooked. In the opinion by Judge Williams in Sparks v. Com., 3 Bush., 111, 96 Am. Dec., 196, the court affirmed a judgment of guilty under an instruction upon manslaughter; citing 1 Russell, Crimes, p. 636, which correctly gives the common-law definition of "manslaughter," but makes no distinction between the voluntary and the involuntary grades thereof. So, in Chrystal v. Com., 9 Bush., 669, the offense was homicide resulting from the recklessly careless use of a loaded pistol; and the opinion by Chief Justice Hardin sustained an instruction on manslaughter; citing 2 Whart. Am. Cr. Law, section 1004, as to the common-law definition. The case of York v. Com., 82 Ky., 360 (6 R., 344) follows the cases of Sparks and Chrystal; the court seemingly overlooking the Conner case and the cases in 78 Ky., then recently decided. The case of Murphy v. Com., 15 R., 215 (22 S. W., 649), sheds no light on the question before us. The instruction given, and there considered, was upon the subject of voluntary manslaughter.

There are therefore three cases in which an instruction

Spriggs v. Commonwealth.

upon manslaughter, without the limiting adjective, was sustained, and one of these three was decided since the decision in the Conner case. It will be seen, however, that the great weight of authority in this State sustains the proposition that the giving of such an instruction is erroneous, and that the three cases mentioned must be regarded as practically overruled. We are clearly of opinion than an instruction upon involuntary manslaughter should have been given in the case at bar, and that the failure to give it was prejudicial error. This question, however, is not before us, except as an incident to the question raised by the motion to discharge.

Thus far we coneur with counsel's contention. But does it follow that we must reach the conclusion which was reached in the Conner case? There the jury found the accused guilty of a crime which was not a degree of homicide, and it was held that that verdict, under an indictment for murder, was equivalent to a verdict of acquittal of all the offenses of homicide. In the case at bar, however, the jury found the appellant guilty (under an erroneous instruction) of manslaughter-a term which covers two degrees of homicide--and fixed his punishment at the statutory penalty for the higher grade. It was as if the jury had found the accused guilty of murder and voluntary manslaughter, and fixed his punishment at death, under an instruction which justified such a finding. However erroneous a record might be which disclosed such a condition, we could not construe such a verdict to be an acquittal; for it not only did not find the accused not guilty of any of the crimes included in the charge of murder, but in fact found him guilty of two of them. The Conner case is one in which the court carried to its logical conclusion a highly technical rule of law. The effect of its application was apparently to de

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Spriggs v. Commonwealth.

feat the ends of justice. We are not criticising that opinion. Technical rules must exist, and must be applied in cases which come literally and logically within their scope. What we decide is that they will not be applied to cases not within their purview; and that it is not logical to construe a verdict that a man has been guilty of two offenses into a verdict of not guilty of any offense. There are numerous cases in which the court instructed the jury erroneously, either as to constituent elements of the offense, or as to the punishment to be inflicted. In such cases this court has granted a reversal. It has awarded the defendant a new trial, but it has not discharged him from custody as acquit. Nor does the case before us come within the rule laid down by Mr. Cooley (Const. Lim., 336), and the case of Ex parte Lange, 18 Wall., 176, 21 L. Ed., 872, as to judg ments beyond the jurisdiction of the court rendering them, or forbidden by the Constitution. The judgment in this case was clearly within the jurisdiction of the court upon the offense charged in the indictment. Nor is it necessary for us to consider whether the verdict may be helped or cured by intendment. We think the instruction was erroneous, and, if a reversal had been sought, it would have been granted. But the defendant has carefully precluded himself from that relief, in the effort to obtain total immunity. He has taken his choice.

For the reasons given, we are of opinion that the order overruling the motion for a discharge was not erroneous, and it is affirmed.

Whole court sitting.

Petition for rehearing by appellant overruled.

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Hardin and Others v. Cress and Others.

CASE 88-ACTION BY SAM. C. HARDIN, &C. AGAINST W. R. CRESS AND
OTHERS TO CONTEST AN ELECTION-JUNE 13.

Hardin and Others v. Cress and Others.

APPEAL FROM WAYNE CIRCUIT COURT.

JUDGMENT FOR DEFENDANTS AND PLAINTIFFS APPEAL.

AFFIRMED.

ELECTIONS-DESTRUCTION OF BALLOTS BY MISTAKE OF OFFICERS.

Held:

A mere mistake of precinct election officers in destroying the ballots after they have been counted and certified, is not sufficient to authorize the vote of the precinct to be thrown out, the truth of the certificate of the officers not being questioned. W. A. MORROW AND O. H. & R. B. WADDLE, ATTORNEYS FOR AP

PELLANTS.

Appellants and appellees were respective candidates for various county offices at the election held in Wayne county in November, 1901. On the face of the returns the appellees received a small majority, and were awarded the certificates of election. The appellants contested the election on ground that in Mill Springs precinct the officers of the election instead of preserv ing the ballots, as required by law, destroyed them, and they contended that on account of this infraction of the law the entire vote of said precinct should be thrown out and not counted; and it is conceded that if this is done that appellants received a majority of the votes cast and are entitled to the offices. There is no controversy about the fact that the ballots were destroyed, but the appellees in an answer allege the good faith of the election officers, and also that the destruction of the ballots was the result merely of an oversight. A demurrer was filed to the petition and a motion made to strike all the affirmative matter from the answer; a reply was filed substantially traversing the averments of the answer. Proof was taken and exceptions filed to the entire depositions, and without disposing of any of these preliminary motions the case was submitted as a whole and a judgment rendered for appellees. We take it that as before stated, the only question involved is whether the section of the statute requiring these ballots to be preserved is directory or mandatory.

The statute is mandatory.

Upon the general principles of law as laid down by the

Hardin and Others v. Cress and Others.

elementary authorities upon the subject of statutory construction the statute in question must be held to be mandatory.

Taking these authorities elementary and the reported decisions in connection with the history of the law itself, it seems to us that it is fully established.

1. That this statute is mandatory by its terms, by its connection with the statute heretofore held to be mandatory, by being remedial in its nature and by making a radical change in a previously existing law.

2. That it makes the contest by a recount of the ballots an integral part of the election duties, and that its provisions in that respect can not be violated without avoiding the entire election as to that precinct.

The experience of a century shows the futility of liberal construction.

We ask for a strict construction to give effect to every part of the law.

If error is made let it be in upholding not tearing down the law.

AUTHORITIES CITED.

Kentucky Statutes, sec. 1482; Governor's Call for Special Session, 1900; Acts 1900, sec. 20, compiled; Sedgwick on Construction of Statutory and Constitutional Law, p. 325; Ibid., p. 327; Cooley's Constitutional Limitations, p. 91, note 1; 61 Maine, 566; 20 Ark., 609 and 65 Ala., 142; Sutherland on Statutory Construction, p. 574; Paine on the Law of Elections, sec. 786; Reynolds v. the State, 61 Ind., 392; Hudson v. Solomon, 19 Kansas, 177; Struss v. Johnson, 100 Ky., p. 319; Nall v. Tinsley, 21 Ky. Law Rep., p. 1167; Sutherland on Statutory Construction, sec. 454; 6 A. & E. Ency. of Law, p. 325; Paine on the Law of Elections, sec. 497; Ibid.; Terre v. Smith, 29 L. R. A., 673 Cal.; Russell v. McDowell, 83 Cal.; Knowles v. Yates, 31 Cal., 83; Bald v. Smith, 16 L. R. A., Mo., 763; State of N. Carolina v. Taylor, 12 L. R. A., 202; Paine on Law of Elections, p. 3.

HARRISON & HARRISON, ATTORNEYS FOR APPELLEES.

STATEMENT,

At the election for county and district officers and members of the General Assembly held in Wayne county, Kentucky, on the 5th day of November, 1901, the appellant, Sam. C. Hardin, was the nominee of the Republican party for the office of county judge, and the appellee, W. R. Cress, was the nominee of the Democratic party for the same office. The election officers of

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